Blame, Excuses, and Ignorance

I have been watching the confirmation hearing of Judge Jackson to become Justice Jackson and I am very troubled.  If this is the best that this country can put forward to sit on the highest court in the land, then this country is in deep trouble.

Thus far what I see from Judge Jackson is an understanding of Constitutional law that is not much better than that of an average second year law student, an inability to take responsibility for her actions, both as a lower court judge and in other aspects of her legal career combined with a keen ability to make excuses and blame others.

I realize we have another day or more of hearings, but at the moment I am not convinced that Judge Jackson should be confirmed; indeed, I hope that her confirmation fails.

Methodology is not Philosophy

Judicial philosophy is an important aspect of determining the suitability of a Justice to the Supreme Court.  That philosophy incorporates a multitude of aspects of the Constitution and Constitutional law as well as an understanding of our form of government and its checks and balances.

Although sometimes referred to by the terms liberal and conservative, judicial philosophies are not necessarily affiliated with liberal or conservative political views.  Instead, they reflect an approach to how one interprets and applies the constitution and existing law to a case under consideration.  Basically, philosophies will be based either in an attempt to construe what is unclear in a way that is usually limited and consistent with the intent of the framers or in a view that is more likely to see the constitution as a sort of living document to which rights and responsibilities not specifically referred to in the document can nonetheless be discovered by the Court.

Most law students in required and perhaps additional elective Constitutional Law classes will study these philosophies in addition to the Constitution itself and the law it has generated.  Students will become familiar with the philosophies of the current as well as past Justices and learn to understand how a different philosophy will direct a different conclusion and result in a case, both past and hypothetically in the future.

Methodology is how one goes about using their judicial philosophy.  It is the method not the underlying guiding principle.  The method will generally be the same regardless of the underlying philosophy:  understand the facts of a case, understand the relevant law including what aspects of that law are settled and what aspects are open to interpretation.  If an interpretation is required, go to accepted and/or required rules of interpretation as well as use your judicial philosophy to apply and interpret.

Judge Jackson does not have a judicial philosophy.  She has a methodology:  look at the facts and apply the law consistent with the Constitution.  That may sound good in passing, but the devil is in the details. That phrase “consistent with the Constitution” will be controlled by one’s judicial philosophy, something that Jackson says she doesn’t have but perhaps something which she is not willing to (or her handlers have told her not to) disclose.

When asked what Justice, current or past, she saw as a good model she could name no one; she was not familiar with what their judicial philosophy is or was – not even Justice Breyer for whom she clerked. 

I have to conclude that Judge Jackson does not understand what a judicial philosophy is, let alone what hers might be.  As a trial judge that doesn’t matter so much because she is not sitting on the highest Court in the land deciding cases that affect our very democracy but is instead deciding cases for which the law is well settled and simply needs to be applied to facts proven at trial.  And improper decisions will be fixed on appeal.  Even as an appellate Judge she still is not deciding cases of the magnitude of those faced by the Justices of the Supreme Court.

Law vs. Policy

Judge Jackson’s lack of a clear philosophy is dangerous.  First, it reflects what is becoming a clearly apparent lack of understanding of the Constitution and a lack of familiarity and/or understanding of Constitutional law.  (I really don’t understand why those who prepared her did not address her obvious ignorance in this area and ask her to hit the books and study before her hearing began.) 

Or perhaps she really doesn’t understand the difference between law and policy – a key difference that separates the political and policy branches (Congress and Executive) from the Judicial branch.  The policy branches are elected and thus the policy reflects the voice of the people.  The Judicial branch is not a policy branch specifically so that policy is of the people and not a fiat by 5 (majority) justices. 

The judicial branch is about the law.  Someone who sits on the Supreme Court needs to understand that and needs to have a better understanding of Constitutional law than this nominee has demonstrated to date. 

The law does not care about what the Court looks like.  I was particularly offended by the testimony during Sen. Feinstein’s questioning this morning that if confirmed Justice Jackson will be a role model for little Black girls.  It is not the job of the court to be a role model just as it is not the job of the court to make policy.  It is the job of the Court and therefore of the Justices to be faithful to the law and the Constitution.  And if they are role models too, then they should want to be role models to all children, not just those of one race or gender.

Accountability

The Supreme Court is the Court of last resort.  The buck stops there. The Justices must know what they are doing; they will have no one but themselves to blame for their decisions.  Which is why Judge Jackson’s seeming inability to take responsibility for her District and Circuit Court opinions is troubling.

Of course, like any trial Judge, Judge Jackson must follow existing law.  But beyond that, she seems to not want to take responsibility for anything.  When asked about an Amicus Brief she wrote and signed, she said she was just doing as told by those who hired her.  (An amicus brief is not written on behalf of a client in the case before the court in which the brief is filed; rather it generally advocates for a particular outcome, often based on policy, hoping to persuade the court to which it is addressed to decide in a particular way.) 

While an attorney is in a way nothing more than a hired gun, when an attorney signs his or her name to a document, under court rules that attorney is certifying, among other things, “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law” and that “the factual contentions have evidentiary support.”  Most attorneys take very seriously the act of placing their signature on a pleading or other legal document.  At a minimum they will have carefully read and understood the document before signing.  Thus, I was quite surprised when Judge Jackson was completely unable to discuss allegations in an amicus brief she had authored and signed.

When asked about her sentencing as a trial judge, especially in regard to pornography cases, Judge Jackson blames her consistently low sentences (well below sentencing guidelines and prosecutorial requests) on Congress for not making guidelines mandatory or clear. 

She excuses statements in a law review article she wrote by saying she was just a law student then.  She seems not to understand that a Law Review Note, while presenting current law, also presents an analysis and conclusions of the author about that law.  When faced with similar statements made by her  as Judge on the record in a recent sentencing hearing, she can’t comment because she doesn’t have the record in front of her.  These statements involved her seeming view that society and the law are too harsh on pornographers; one would think she could explain that even without a record in front of her. 

General Legal Knowledge (or lack thereof)

But then so many things that Judge Jackson was asked about she either didn’t understand or clearly had never even heard about until the Senator asking the question explained it to her.  That is frightening.

In my opinion, from what I have seen thus far, Judge Jackson may be an adequate lower court judge, but she is not ready for the Supreme Court.  Maybe one day she will be, but today is not the day.    She is charming and has a fairly good understanding of the role of a trial judge, but that is not enough.   She lacks a solid grasp of the law and legal concepts that are crucial to understanding cases that come before the Supreme Court.   

On the highest court in the land I expect to see the highest, most stellar legal minds.  I do not see that here.

This nominee seems to think that she would skate through this hearing as the first Black Female to be nominated.  Her supporters do seem to imply that she should be confirmed on that fact alone, so perhaps she believes the confirmation is assured.  I hope that is not the case.  Not only because it would be destructive to the Court, but because it would also not create a role model but rather an embarrassment to those “little Black girls” that she and her supporters think they are championing. (For another time is a comment on the hypocrisy of Democrats making a big deal out of this “first” when they, including then Sen. Biden, filibustered and voted against other Black female judicial nominees when they were conservatives). 

I hope that the Senate will not confirm this nominee.  I hope that the President will then look at qualified candidates, not just those who meet a particular race or gender requirement and pick a truly stellar legal mind for the Court.   If that person happens to be Black, all the better, but reducing candidates to the color of their skin is wrong on so many levels.   Picking a nominee based on the content of their character and qualifications, not just as a “first”, is what can truly make everyone in this country proud.  And for those who care about our fragile democracy, it is the best way to preserve and protect its greatness.